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owing by him at the time he became a bankrupt; even though
z Stat. 5 Geo. II. c. 30.
(22) That is, in an action brought against the bankrupt for a
(23) The bankrupt is discharged by his certificate from all debts
For n10 allowance or indemnity shall be given to a bankrupt, unless his certificate be signed and allowed, as beforementioned ; and also, if any creditor produces a fictitious debt, and the bankrupt does not make discovery of it, but suffers the fair creditors to be impofed upon, he lofes all title to these advantages?. Neither can he claim them, if he has
a Stat. 24 Geo. II. c. 57.
that, if the principal gives the furety an absolute unconditional bond as an indemnity, he may prove it under the commission, though he has never been called upon to pay the debt of the principal. 27. R. 640. Yet in such a case it must be presumed that the surety would be restrained from receiving under the dividend more than he had actually been compelled to pay, or from receiving any thing at all till he was actually damnified. In analogy to the contingent debts of fureties, I conceive two cases have lately been determined, one in the common pleas upon a bill of exchange, H. Bl. Rep. 640: the other in the king's bench upon a promissory note, 4 T. R. 7!4. In each cafe the payee was obliged to take back the bill or note, and to pay the value of it after the bankruptcy of the drawer; against whom he afterwards broughtan adion, who pleaded his bankruptcy and certif. Cate in bar; but the courts held in the respective cases, that the bankrupt was not discharged by the certificate. But in both these cases it may be collected from the reports, that they were merely accommodation billi, that the payees had given no value before the bankruptcy, that they had lent their names merely as sureties, and of consequence, that the bankrupt was not indebted to them till they had been obliged to pay the amount of these bills. This circumstance is so flightly stated in each report, particularly in the latter, as to induce many readers to suppole that no indorser, who is obliged to take back a bill or note after the bankruptcy of the drawer or aeceptor, can prove it ander his commission. But I apprehend the courts never intended to say that a holder of a bill, who has given full value for it before the bankruptcy of the draweror acceptor, and is obliged to take it back after his bankrupicy, cannot prove it under the commission; a debt is due to him before the bankruptcy, which cannot be affected or disturbed by the subsequent allignment and re-assignment of the bill. It has been determined, that the allignment relates to the original debi, and the allignee ttands in his place. Ccoke, 2;. Hence an ir
dorfce without notice, after the ifiuing of the commiifiov, ought to ; be admitted to prove, and have relief under the commission.
given with any of his children above 1001, fur á marriage
Thus much for the proceedings on a commission of bank. rupt, so far as they affect the bankrupt himself personally. · Let us next consider,
o Scat. 5 Geo. II. c. 30.
(24) If they do not pay fifteen shillings in the pound under the second commiflion, the fecond certificate is no bar to an action or execution against their future effects. 5 T. R. 287.
P p 2
4. How fuch proceedings affect or transfer the effate and property of the bankrupt. The method whereby a real estate, ni lands, tenements, and hereditaments, may be transferred by bankruptcy, was shewn under it's proper head in a former chapters. At present therefore we are only to consider the transfer of things perfonal by this operation of law.
By virtue of the statutes before-mentioned d all the personal estate and effects of the bankrupt are considered as vested, by the act of bankruptcy, in the future assignees of his commis. sioners, whether they be goods in actual poffeffion, or debts, contracts, and other choses in action ; and the commissioners by their warrant may cause any house or tenement of the bankrupt to be broken open, in order to enter upon and feile the same. And when the assignees are chosen or approved by the creditors, the commissioners are to aflign every thing over to them; and the property of every part of the estate is thereby as fully vested in them, as it was in the bankrupt himself, and they have the same remedies to recover it (25).
THE property vested in the assignees is the whole that the bankrupt had in himself, at the time he committed the first act of bankruptcy, or that has been vested in him since, before his debts are satisfied or agreed for. Therefore it is usually faid, that once a bankrupt, and always a bankrupt : by which is meant, that a plain direct act of bankruptcy once
e 12 Mod. 324.
< pag. 285.
(25) And it has been decided after much serious argument, that the assignment of the commissioners conveys the bankrupt's personal property and interests, which are out of the kingdom at the time of bankruptcy and assignment. 47. R. 182.
And by the assignment the property is so completely vested is the assignees, that the bankrupt is not entitled to receive from his estate even the necessary subsistence of himself and family, but by the favour and indulgence of the assignces and creditors. 1 T. R.157.
committed cannot be purged, or explained away, by any sub-
* Salk. 110.
Di Atk. 262.
(26) The court of king's bench have gone so far in holding that .a clear unequivocal act of bankruptcy cannot be wiped away by any subsequent conduct, as to decide, that if a merchant is denied in a morning, when a holder of a bill comes for payment, it is an irrevocable act of bankruptcy, even though he should pay the bill in the course of that day, before it could be protested, or he could be sued upon it. 2 T. R. 59. This is a severe case; and it has rather the appearance of a petitio principii to pronounce it an unequivocal act of bankruptcy. A denial is not of itself an act of bankruptcy, but only evidence of one; viz. a beginning to keep house with intext to defraud and hinder creditors; and where a debtor prevents his creditor from being hindered for a moment after he has a right to demand payment, ought we not in candous and justice to presume that he never had that intent ? Indeed, in such a case it is not improbable that the denial was merely for the pur. pose of procuring the means of discharging the debt.
(27) The king not being expressly named in the bankrupt statutes, is held not to be bound by them, 2 Str. 982; and therefore